Government Affairs Update

Follow the TBA's efforts to influence federal and state policy as it fulfills one of the core missions of the association – advocacy for the profession and for our system of justice.

TRA Reform Bill Moves Ahead

Despite a plea from the Republican chair of the Tennessee Regulatory Authority and criticism from Democratic legislators, a Senate committee Thursday approved Gov. Bill Haslam's plans for transforming the agency. "Maybe it'll work. Maybe not," TRA Chair Kenneth Hill told the committee. "Why go there and inflict damage to the utilities of Tennessee and to the people of Tennessee … then have to come back and fix it?" he asked. Read more from Knoxnews.com

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Judicial Selection Deferred to Next Week

Legislative action this week on judicial selection issues ended in almost as big a muddle as it began.

Today, Sen. Brian Kelsey, R-Collierville, deferred action to Monday night on his constitutional amendment, SJR 710, which would remove merit panels from the process and replace it with Washington-style confirmation when selecting and retaining judges in Tennessee.

Meanwhile, the House seems set to pass only the House counterpart to the Kelsey plan and not move forward with the two resolution strategy that seemed to be emerging at the end of last week. The House counterpart to Sen. Mark Norris’s resolution (SJR 183), which was successful in the Senate on Monday night, will not see consideration in the House Finance Committee until Tuesday at the earliest.

Lost in all of the mêlée is any consideration of how the next election for all judges -- which the constitution requires to be held in August 2014 -- will be conducted. The TBA and allies in the business, civic and legal communities remain committed to stability and consistency, which the current process offers while the debate on the need for and the best outline of future changes takes place.

Contact with lawmakers -- and as importantly, feedback with the TBA on that contact -- are important ways each lawyer can contribute to the future of a fair and impartial court system.

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Bill Directs AOC to Study Special Vet Courts

Tennessee veterans suffering post-traumatic stress disorder and other psychological problems stemming from military service could soon have their own special courts should they find themselves facing prosecution in the state’s criminal justice system. The state House unanimously passed a bill today, HB 3394/SB 3222, which directs the Administrative Office of the Courts to study whether it is feasible for the state to establish specialized courts for veterans. The bill passed the Senate unanimously on April 12. TN Report has more

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DUI Proposal Headed to Governor

A proposal that may increase the penalty for drunken driving when a child under 18 is a passenger in the vehicle is headed to the governor. The measure, sponsored by Rep. Tony Shipley, R-Kingsport, was unanimously approved in the state House on Tuesday. The companion bill unanimously passed the Senate last month. Under current law, a person arrested for DUI with a minor in the vehicle is sentenced to a mandatory minimum incarceration of 30 days and a fine of $1,000. The new proposal requires the incarceration be served consecutively with any sentence for DUI, vehicular assault, vehicular homicide or aggravated vehicular homicide. The Memphis Daily News has more

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Conservatorships Under Scrutiny

Concern over possible abuses in the conservatorship process is prompting some elderly advocates to call for reforms and model laws across the country that grant more rights to the individual and offer more protection. The Tennessean reports on one recent case where an 82-year-old Nashville woman lost all of her possessions in a conservatorship case. State Rep. Gary Odom, D-Nashville, has filed a bill that would provide additional protection to people facing conservatorship, the newspaper reports. “We’ve got to make sure that people aren’t put into conservatorship without due process,” Odom says. His bill would set new notice requirements before a conservatorship could be imposed. It also would require additional medical proof, including sworn statements from three physicians, that an emergency conservatorship was justified.

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Judicial Selection Hits 'Stalemate'

Legislators have reached what Senate Majority Leader Mark Norris calls "the stalemate place" on how Tennessee's top judges should be selected and are now racing to delay a decision until next year. After a convoluted series of events, the Senate has before it two proposals for amending the state constitution. The two competing proposals are SJR183 by Norris, R-Collierville, and SJR710 by Sen. Brian Kelsey, R-Collierville. Norris's bill, as amended, would repeal the current constitutional provision declaring that top judges "shall be elected by the qualified voters of the state" and declare instead that the legislature is "authorized to establish, by law, a system of merit-based appointments with retention elections for the judges of the Supreme Court and for the judges of the intermediate appellate courts." Kelsey's measure would adopt a system similar to that used by the federal government. The governor would appoint the judges, subject to confirmation by the legislature. The News Sentinel has the story

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Editorial: Good Candidates Hard to Find, No Matter Who Picks Them

In an editorial, the Times Free Press discusses the differing views about how judges in our state should be selected. "In addition to character, judges should be chosen on the basis of their knowledge of the law, which is something that voters may have a hard time judging," the paper says. "Good candidates are understandably difficult to find -- and hard to choose between -- regardless of who picks them." Read the editorial

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Senate Takes 'Test Vote' on Judicial Selection

The state Senate took a test vote on Thursday to see who likes what method of appointing judges, WPLN reports. A proposal much like the current system got one vote more than a measure that would put a federal-type, appoint-and-confirm system in place. To be eligible to go on the next referendum ballot (November 2014) bills must pass both houses by a simple majority this year, then pass in the next General Assembly by a two-thirds vote. Although the resolutions have been “read” in the Senate, almost a ceremonial step, no votes on the measures themselves have been taken. The earliest that could happen is Monday.

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Judiciary Committees Wrap Up Work for Year

In what was expected to be the last meetings of the year for the House and Senate Judiciary committees, legislators dealt with several issues of interest to lawyers. The marathon sessions this week lasted more than a combined total of 22 hours. Among the items addressed were:

• Legislation to codify an end to joint and several liability (SB 2141, HB2810) and further limit punitive damages in vicarious liability cases (SB 2637, HB 3125) were both “taken off notice” -- signifying the sponsors’ intention not to pursue passage this year.

• Legislation to codify a duty of care to trespassers (SB 2719, HB 2983) was recommended for passage.

• A bill to require payment of up to $5,000 in costs to a prevailing party in certain limited cases in which a motion to dismiss is granted (SB 2638, HB 3124) will move forward for consideration.

• Legislation to change the rate of interest on judgments (SB 2705, HB 2982) was recommended in both houses but faces an uncertain future because of differences between the two versions.

• The TBA-backed bill to revise various provisions of probate law (SB 2948, HB 3237) received a favorable recommendation.

• A bill that would have significantly impacted conservatorship proceedings (SB 2519, HB 2648) was recommended after adoption of TBA amendments to limit is impact while agreeing to study the issues further.

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Contested Election Bill Fails; Eventful Judicial Selection Day

Legislation to abolish the Tennessee Plan and replace it with contested, partisan elections for all appellate judges in 2014 failed in what is expected to be the last meeting of the House Judiciary Committee late today. The vote was 7-7 on HB 173 by Rep. Glen Casada, R-Franklin.

First thing this morning, the Senate held the first reading on two resolutions that cleared the Senate Finance Committee as reported in TBAToday yesterday. Early voting on those resolutions though is not considered to be indicative of the final outcome. SJR 183 by Mark Norris, R-Memphis, permits the General Assembly to adopt a merit appointment system with retention elections. SJR 710 by Brian Kelsey, R-Collierville, forbids merit selection and provides for gubernatorial appointment and legislative confirmation before retention elections.

At midday, the House Finance Subcommittee recommended to the full committee adoption of HJR 830 by Jon Lundberg, R-Bristol, as amended. This bill is considered the analog to Norris' SJR 183. The amendment requires merit-based selection "with the concurrence of the legislature” followed by retention elections. The analog to SJR 710, which is also sponsored by Rep. Lundberg was put over for consideration in the subcommittee until next week.

What does it all mean? It is always hazardous to predict legislative matters, particularly in the fluid, chaotic state of affairs at the end of a legislative session. However it does appear that some of the options for advocates of changing our system are narrowing, as are the options for renewing the current plan. Stay tuned for further developments.

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